Order of Business, 20 June 2012

I support Senator O’Brien’s proposal to deal with motion No. 9 today. It has been widely reported that the report of the independent review group on child deaths will be published later today. I greet this report with profound sadness and with a sense of responsibility and shame I bear as a member of a society that has systemically failed to protect our most vulnerable children. I commend the dedicated work and the sensitivity with which the report’s authors met this agonising task and I sympathise with the family and friends of each of the children and young people documented in the report. Their stories have been told anonymously, but those who love them know who they are.

The report examines the death of 196 children and young adults, either in the care of the State or known to the State between the years 2000 and 2010. Some 112 of these died from non-natural causes, ranging from suicide to drug abuse. Each and every one of these was a child The review group was established in 2010 by the former Minister with responsibility for children, Barry Andrews, due to concern about the HSE’s inability to provide accurate figures on the number of deaths of children in State care. The reported findings seem to point to systemic failure within the HSE child protection system and documents many deaths that could and should have been prevented. The majority of children did not receive adequate child protection services. This is a damning report for all of us. We are all part of society and I see it as damning.

I have asked on several occasions over recent weeks, but now with urgency, for the Leader to invite the Minister for Children and Youth Affairs to the House to discuss this report and to set out her Department’s response. This is not day one of the reform process. This report has been with the Minister for several months. I have questions for the Minister that I hope the Leader will put. Will there be an independent investigation into several high profile deaths of children in the care of the HSE or known to the agency? Will the State put on a statutory basis a provision of care for children when they reach the age of 18? What are the plans for the new, much mooted child and family support agency? What are the plans to strengthen children’s rights in the Constitution? All too often children have been moved to the bottom of the priority list. This report signals the need for a system through which we will act early and decisively to protect children. Every child must and should count. We cannot have different standards for children in care and children in families. I call for the Seanad to take the leading role in part of this reform.

Child Care (Amendment) Bill 2009 – Seanad Bill amended by the Dail – Report and Final Stages

20th July 2011

I am pleased this Bill strengthens the powers of the newly-established Department of Children and Youth Affairs. Last week, the Minister referred to the unsatisfactory situation in 2010 when an independent review group on child deaths, established by the then Minister of State with responsibility for children and youth affairs, Barry Andrews, was furnished with preliminary information by the HSE but refused access to individual cases files. This was due to legal concerns identified by the HSE on the provision of information to the group. It is vital to the success of the new Department and both natural and obvious that the Minister for Children and Youth Affairs is given direct access to files as she needs them in a safe and proper way, bearing in mind the sensitive nature of some of the information required. This will help her ensure full accountability in the arena of child protection.

Strengthening the powers of the new Department is also important in ensuring consistency in the collection of child protection data from around the country. This is the best way to ensure that a consistent threshold is maintained with regards to children being taken into care.

As the Minister outlined in the past week, there is a big job ahead in strengthening child protection systems. The new Department will have an agency dedicated to family and children services. This will remove the child protection component out of the ambit of the HSE which will re-balance that dynamic and power more favourably towards the new Department.

This Bill is an important step towards strengthening child protection systems. I note the Minister will introduce legislation later this year to create the new child welfare and support services agency. I offer her our support on this as it is in all our interests to bring it forward as quickly as possible. I hope the legislation is comprehensive to allow for the proper lines of accountability at administrative, executive and political levels to ensure the failings that occurred in the setting up of the HSE in that regard are not repeated.

This is the appropriate time to comment on special care orders. This element of the Bill, which relates to special care orders, is highly positive and pertinent. It also relates to one of most serious of all State powers, namely, the power to detain a child in a centre such as Ballydowd. This power must always be used with the utmost care and in absolute deference to the rights of each individual child.

A previous issue of concern was that the relevant provisions of the Child Care Act 1991 were not operational. As a result, it fell to the High Court to hear applications for special care orders. I welcome the provision to afford to the Health Service Executive the power to apply to the High Court for a special care order for a child. I am pleased the previous ambiguity has been removed and the Bill sets out in unequivocal terms the processes to be followed by the HSE. These include the steps to be taken from the initial consideration of the child for special care, the application for the order, the hearing of the case, the granting of the order and the care of the child under the order through to the discharge of the order. I also welcome the role the Health Information and Quality Authority will have in this respect as a result of the amendments proposed by the Minister.

Although I support the Bill, I am concerned about the failure to address the issue of after care. I am aware this issue has been debated extensively but this legislation remains a missed opportunity. I am concerned that an amendment has not been included to make the provision of after care an automatic legal entitlement where a child has an identified need. The obligation to provide after care should be clearly stated in law. When the State assumes parental responsibility for a child in care there should be a corresponding obligation on the State, within legislation, making it crystal clear what are the State’s obligations, including the obligation to ensure the child is cared for and not abandoned when he or she turns 18 years of age.

I listened intently to the Minister’s comments on after care in the Dail last week. Research reports have continually shown that children leaving care need support, as confirmed again by a recent report by Empowering People in Care, EPIC, formerly the Irish Association of Young People in Care, IAYPIC. An amendment to legislation on the issue of after care has been sought by many organisations, including Barnardos. It is also one of the primary demands of the action for after care coalition. While I am aware the Minister intends to return to the issue of after care and much work is being done on it, an opportunity has been missed to address the issue in this legislation.

Fourth Report of the Special Rapporteur on Child Protection – Statements

7th June 2011

I welcome the opportunity to debate the fourth report of the special rapporteur on child protection, the child law expert Mr. Geoffrey Shannon who has delivered a comprehensive and considered analysis of child protection.
I warmly welcome the Minister for Children and Youth Affairs, Deputy Frances Fitzgerald. As a new Senator, I welcome the appointment of the former Senator to her new role. As she stated, the Department of Children and Youth Affairs was established only last week, but I know she has been doing plenty of work behind the scenes, which includes the creation of a new agency dedicated to family and children’s services which will make a significant improvement and I hope have a positive impact on children’s lives.

I welcome the Minister’s response to the report of the Government appointed special rapporteur. Mr. Shannon is responsible for keeping under review and auditing legal developments in Ireland for the protection of children and identifying gaps in child protection. This is the first time that any of his reports is being debated in the Oireachtas. The need for this debate and subsequent action is evident to me.

Let us look back at the first report of the special rapporteur on child protection, which was written in the shadow of the horrific murders of Holly Wells and Jessica Chapman in Soham, England. In that report in 2007 Mr. Shannon identified the need for legislation dealing with soft information. He also outlined a road map. Years have passed and it is only in the past few weeks that we have seen action on this important issue under the direction of the Minister. I hope we will also see action in other areas.

We must deal with child protection in the here and now. In Ireland we can talk about the past and try to share and console one another. However, we have to try to atone for the past and for me the best way to do so is to ensure children are protected adequately and sufficiently. That will demonstrate we have learned the lessons of the past.

There are 105 recommendations in Mr. Shannon’s report. I will focus on some of the key areas at which we need to look.

I endorse the report completely and entirely. The first part deals with strengthening child protection structures. We still have a weak child protection structure in Ireland; neither the guidelines nor the vetting system operates on a statutory basis. The Ryan report implementation plan spotlighted these inadequacies. In his report Mr. Shannon has identified some of the gaps; for example, Children First: national guidelines for the protection and welfare of children is a voluntary set of guidelines. I acknowledge that the Minister is working to legislate, as well as ensuring a revised set of guidelines is published and, equally important, subsequent practice guidelines by the HSE are put in place. These need to be placed on a statutory basis because we need to ensure there is a collective duty to report concerns about the neglect or abuse of a child. This is a basic child protection measure that is readily applied in other countries. We need to get to the stage where one can report a concern and that it does not have to escalate immediately to one of abuse. As a voluntary leader, I can relate to this. At present, unless there are alarm bells ringing, it is very difficult to get the system moving. For me, success will be achieved when we start to join the dots. Should I have a concern for one of the girl guides in my care and the teacher have a concern, somebody should joins the dots and ensure supports are put in place to help the family to work and that if the child needs to be taken into care, he or she is.

On vetting and soft information, Mr. Shannon rightly identifies the failure to regulate the exchange of soft information has severely compromised the protection of children in the State. There were two cases in the courts in 2010 in which inter-agency co-operation was identified as a roadblock. In addition, we know that the appeal in M.I. v. HSE currently before the Supreme Court has the potential to undermine the vetting system. Mr. Shannon has raised a red flag and we should take action. I know that the Minister is working on this very pressing issue.

With regard to children and the criminal law, Mr. Shannon’s observations also provide much food for thought. It is very important to ensure practice and the law are always in support of the child victim and that all activities undertaken are in the best interests of the child.
Mr. Shannon raises the issue of disclosure in cases of child sexual abuse. At present, the confidential records are shared with the defence during criminal trials. Understandably, victims are often afraid that their personal records will be made available to the accused, resulting in fewer cases being processed. Mr. Shannon, therefore, recommends that Ireland urgently requires legislation and better regulation of the disclosure of children’s records during such trials.

As the issue of joint interviewing and training has been raised by several of my colleagues, I will not dwell on that point, except to say we need to ensure children do not have to undergo unnecessary interviewing. We should ensure their best interests are at the heart of investigations.

The third of the five areas involves children in the care of the State. As the Minister is aware, many children in the care of the State are extremely vulnerable. They do not have an adult to champion their cause, the role parents traditionally undertake. They really are marginalised and should be entitled to the highest possible supports. Regrettably, this does not always happen. We are all well aware of the high profile cases in the media where children have been utterly failed by the State. Mr. Shannon’s report makes some solid recommendations to mitigate such disasters and I recommend that they be taken on board.
Senator Mary White has called for the out-of-hours services to be available nationwide and I agree. I welcome the piloting of these services in counties Donegal and Cork and I hope this will ensure that at last we can get 24-hour support for children. I can get support if I have my pet at home, but I cannot get it for a child, which says something about our society’s values.

The Minister has said that addressing youth homelessness is a priority and the programme for Government contains such a commitment. Mr. Shannon is rightly critical of the Criminal Justice (Public Order) Act 2011 relating to begging as it applies to children. We must remember that children who beg are highly vulnerable and child begging strikes to the very essence of child welfare and children’s rights.

Several of my colleagues have raised the important issue of aftercare and how people do not suddenly become adults on their 18th birthday. It does not happen overnight and parents of 19, 20 and 21 year olds will tell me it is a transition phase into adulthood. We need to ensure the State provides aftercare support for all homeless children and children in care in order that we still hold their hand and gently helping them into independence and adulthood. The link between youth homelessness and children leaving State care has been clearly established. While this was not in the report, the latest housing-need statistics, gathered in 2008, show that the largest increase in demand for social housing was from young people leaving institutional care, an increase of 179% since 2005.

The report makes important recommendations on children’s mental health. I speak also in my capacity as chair of the Children’s Mental Health Coalition, which has given me an insight into how mental health difficulties can impact on any family, anywhere in the country and at any time. I fully support and endorse these recommendations. Among them, the report recommends that the Mental Health Act 2001 should be amended to include a separate section which clarifies the rights of children within the mental health system. This should include legislation to clarify the right of those over 16 to consent to medical intervention and detention in psychiatric institutions. Related recommendations include: an amendment to the mental capacity Bill to include persons aged 16 years, and the development of a detailed code of practice on admission to and treatment of children within mental health institutions, complaints mechanisms and better consultation with children.

I was delighted to see the reports very clear recommendations on child trafficking, an issue about which I feel very passionately. Child trafficking is a very serious issue and in Ireland we often would like to feel it does not happen. Some four out of five trafficked children are trafficked for sexual exploitation. Cases of child trafficking have been discovered in many parts of Ireland, including counties Dublin, Sligo, Kilkenny and Wexford. Last week, this was once again highlighted through a disclosure contained in cables obtained by a national newspaper through the whistle-blowing organisation WikiLeaks. HSE officials admitted to US diplomats conducting research for an annual report on people-trafficking in Ireland that children have been going missing from State care and ending up working as sex slaves in brothels. Mr. Shannon’s report recommends criminal sanctions against the users of paid sexual services and I welcome the Minister’s proposal to look at Swedish legislation with a view to introducing similar legislation to criminalise those who access these services.
I would also welcome our ratifying the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. Ireland signed this optional protocol 11 years ago and now needs to ratify it. With the Adoption Act 2010 in place, we are very close to ratifying it and we need to do so. I am involved in a campaign with the Body Shop and the Childrens Rights Alliance, which has collected almost 150,000 signatures calling on Ireland to ratify this optional protocol.

This debate is extremely important but I hope it is not just a once-off debate. I hope the Seanad can review the implementation on an annual basis and use the special rapporteur’s report. One of the Oireachtas committees to be established should be charged with ensuring recommendations from reports of this nature are implemented. All too often we see these reports where we agree with the recommendations. We need to roll up our sleeves with a view to improving outcomes for children and make a difference. In all the work I have done on the issue, I have found this is not a party issue but an issue on which we agree across the board. I would like us to go beyond raising the complaints, and to support the Minister and her new Department in improving outcomes for children.

The Lancet

In July 2021, Jillian co-authored an article in the world-renowned medical journal “The Lancet”